Complainant

Respondent

Parties

Helen  O'Connell

Carechoice Swords Nursing Home

Representatives

Siobhan McGowan of Alastair Purdy & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00064869-001

18/07/2024

The Complainant was a sous chef employed in the catering department of the Respondent nursing home. In March 2024 the head chef left and was replaced in late April.

The Complainant resigned on the 31st of May and worked out her notice, plus a few additional days at the Respondent’s request. Her employment terminated on the 17th of June 2024.

The Complainant attended the hearing and provided evidence under affirmation.

She was constructively dismissed after persistent undermining behaviour by the Head Chef which culminated in a particularly upsetting incident on the 29th of May. When she went to raise these issues with HR she was intercepted by the Director of Nursing who made clear that she was being blamed for everything. After this the Complainant decided she had no alternative but to resign. She had hoped that someone senior would approach her and recognise the wrongs that had been done and encourage her to stay but this did not happen.

The Respondent’s solicitor, Ms McGowan, made oral and written submissions on their behalf. The Complainant did not give the Respondent an opportunity to investigate or address her issues before resigning. When they did investigate these matters after the Complainant resigned the Complainant appeared to be unwilling to engage with any process which recognised other points of view or evidence that contradicted hers.

Ms Danielle Lynch, Group HR Manager, gave evidence under affirmation.

The Law

Section 1 of the Unfair Dismissals Act 1977 provides that a dismissal includes:

“the termination by the employee of his contract of employment with his employer… in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

It is well established that the burden of proof in a constructive dismissal claim rests with the employee. The employee must establish that the employer’s conduct amounted to a repudiatory breach of contract or was otherwise so unreasonable that the employee was justified in resigning.

The Labour Court, and the Employment Appeals Tribunal before it, have consistently held that constructive dismissal is an option of last resort. In Conway v Ulster Bank Ltd, the Tribunal stated that it is incumbent upon an employee to substantially utilise the employer’s grievance procedure before resigning. Similarly, in Dunnes Stores v Mc Cormack, the Tribunal emphasised that resignation should not be the first response to workplace difficulties and that an employer must ordinarily be afforded an opportunity to address and remedy the matters complained of.

Only in exceptional circumstances, where the internal procedures are demonstrably futile, ongoing attendance at work would be unbearable or where the conduct complained of amounts to an immediate repudiatory breach, will an employee be excused from exhausting available remedies.

Findings of Fact

 A new Head Chef commenced employment with the Respondent approximately a month before the Complainant resigned. The Complainant gave evidence that difficulties arose almost immediately, that she was blamed for ordering issues which were not her fault and that the Head Chef had a constant negative attitude toward her.

The Complainant’s evidence was that incident occurred on the 29th of May in the kitchen where the Head Chef deliberately blocked her movement by placing equipment around where she was working. That same morning, she had been accused of reporting on the Head Chef and generally being unsupportive.  She left the kitchen and decided to bring this matter formally to HR and informed the Head Chef that she intended to do so.

Before she reached HR, she was called to a meeting by the Director of Nursing (“DON”). The Respondent’s position is that the DON had seen the Complainant distressed in the corridor. The Complainant disputes this and her evidence is that she was essentially intercepted on her way to HR. The parties are agreed that a meeting occurred in an office and they were joined by two HR representative and a minute was taken. While the Complainant now disputes the minute it does confirm a lot of her evidence regarding the meeting. The DON accused the Complainant of raising a leak in the kitchen with a food safety inspector rather than raising it with the Respondent first. The DON also described the issues the Complainant had raised as a clash of personalities.

The Complainant attended training the next day and went home afterwards due to a headache. She resigned the following day, the 31st of May. She did not submit a grievance prior to resignation. She did send an email confirming her resignation which outlined a detailed complaint on the 3rd of June. Ms Danielle Lynch was assigned to investigate this and met with the Complainant before her final working day. She asked the Complainant whether there was anything the Respondent could do to allow her to withdraw the resignation and the Complainant stated that the attitude of the Head Chef had ”cemented” her decision.

More generally the Complainant believed management had made up their minds and that pursuing matters further would have been futile. She accepted that she was aware of the Respondent’s grievance procedures. She did not escalate the matter to Head Office as an alternative to dealing with local management.

Even after the Complainant had left the Respondent Ms Lynch continued with an investigation. Ms Lynch met with the Complainant, witnesses identified by her, and other relevant staff. The Complainant’s evidence was disputed by others and Ms Lynch concluded that there was insufficient evidence to substantiate the allegations of intimidation or bullying.

The investigation was reopened when the Complainant alleged that witnesses had been untruthful. Further interviews were conducted. Again, conflicting accounts emerged and Ms Lynch became concerned after the Complainant directly approached a wittiness and asked them to revise their statement. The investigation concluded without upholding the Complainant’s allegations.

The Complainant was offered an opportunity to appeal the investigation outcome but did not avail of it. She declined to meet for the second outcome meeting and communication was by email.

Conclusion

I conclude that the Complainant failed to substantially utilise the Respondent’s internal procedures prior to resignation and afford them an opportunity to resolve these matters. This was not a case where the grievance mechanism was unavailable or demonstrably futile. While I accept the Complainant’s evidence that she was stressed and upset at work she has not established that continuing to work for them while she went through the process would have been unbearable. As Ms McGowan points out the Complainant not just worked out her full notice but she also carried on for a few days at management’s request.

In those circumstances, I find that the Complainant has not discharged the burden of establishing that she was constructively dismissed within the meaning of the act.

I find that the complaint is not well founded.